dissenting.
I respectfully dissent.
The trial court correctly refused to grant petitioner’s application for writ of mandamus to require the respondent to accept the returns, canvass the votes, and declare the results of the void election held on February 13, 1960. The election was held *466for the purpose of incorporating a tract of land comprising 47 acres and designated in the record as “Impact”. The Court of Civil Appeals at Eastland has affirmed the action of the trial court in sustaining respondent’s plea in abatement and ordering a dismissal of petitioner’s suit.
The election was held regardless of the action of the County Judge in withdrawing his former order granting the petition to incorporate. I disagree with the court’s view that the County Judge was without authority to withdraw his first order.
Petitioner claims that on the morning of February 1, 1960, a proper petition to incorporate a town “Impact” (147 acres) was presented to the County Judge.
Respondent contends that when he entered the original order calling the election to be held on February 13, 1960, he did not know the true facts, but, upon ascertaining the true facts, and on February 11, 1960, before the election was held, he did in good faith revoke his previous order of election. The revocation order states various reasons for revoking the former order. It is clear from the revocation order that the County Judge had .upon further consideration ascertained that the so-called town of “Impact” was not a town within the meaning of Article 1133, Vernon’s Annotated Civil Statues. That Article provides that “a town or village” may incorporate. On February 11th, the County Judge found that the 47-acre tract designated as a town by petitioner was, in fact, never known as a town, but was a part of a “much larger community of some 691 acres * *
Petitioner’s First Supplemental Petition alleged that when the respondent entered his original order calling the incorporation election his power was exhausted, and that the subsequent hearing, which was the only public hearing, was a nullity, and further that respondent had actually conspired with the Board of Commissioners of the City of Abilene to deprive the citizens (27 voted) of “Impact” of their rights, and that such action constituted a fraud on such citizens. These allegations of fraud were considered by the trial court. The order of dismissal recites :
“The Court having considered all the pleadings and motions filed * *, and finding that Relator, Dallas G. Perkins, has alleged no acts or conduct on the part of Respondent, Reed Ingalsbe, sufficient in law to constitute such fraud or *467other ground as would authorize this Court to grant the petition for mandamus prayed for; and that Respondent’s motions to abate and dismiss this action should be granted.”
Petitioner appeals to the Court of Civil Appeals from such adverse ruling of the .trial court. The sole point of error presented in Perkins’ brief reads as follows:
“The Court erred in finding that plaintiff alleged no acts or conduct on the part of Respondent sufficient in law to constitute such fraud or other ground as would authorize the Court to grant the petition for mandamus. The District Court clearly has such power under the facts alleged.”
I cannot agree with the court that the argument under this point in the Court of Civil Appeals was sufficient to raise in that court the points assigned in this Court upon which the writ was granted. The application for writ of error does contain points three and four.. These points, however, only go to the question of fraud, and such points like the point in the Court of Civil Appeals make no reference to any alleged error on respondent’s part in revoking the election order.
Petitioner argued under the sole point in the Court of Civil Appeals that “Appellant [Perkins] recognizes the rule that fraud such as would be sufficient to attack an order of the County Judge involving an incorporation procedure must be fraud chargeable to the County Judge. (State ex rel Burkett v. Town of Clyde, 18 S.W. 2d 202, writ refused). The plaintiff in the instant case pleaded that the County Judge in revoking his first order did so in bad faith. The plaintiff further pleaded that the City of Abilene through its officials interfered with the proceedings involving the incorporation of Impact although they had no right to do so. * * *” -
All of the argument in petitioner’s brief in the Court of Civil Appeals, preceding the above quote, was in connection with the allegations of fraud. Such argument cannot take the place of a point if there was no fraud or if the County Judge did not act in bad faith.
The Court of Civil Appeals rejected petitioner’s argument and agreed with the trial court, holding that a “petition for mandamus must, in order to determine the rights herein involved, contain allegations of facts, not conclusions, showing that *468the Judge was guilty of fraud in revoking his order for an election. Word, County Judge, v. Schow, 29 Texas Civ. App., 120, 68 S.W. 192, writ refused, * *
This Court takes jurisdiction of points one, two, and five on the ground that the three points were properly raised in petitioner’s motion for rehearing in the Court of Civil Appeals. I cannot agree with this conclusion. Petitioner was the appellant m the Court of Civil Appeals and it was his duty to point out in his brief with particularity the particular ruling or action of the trial court which he contended was error. See City of Deer Park v. State ex rel Shell Oil Co., 154 Tex 174, 275 S.W. 2d 77. In that case we said: “It is the purpose of an assignment of error to point out, segregate and identify the particular ruling or action of the Court which it is contended constitutes reversible error, and the effect of the segregation and identification is to waive all other complaints as to all other rulings and actions of the Court, unless they are also assigned as error.” [Emphasis added.] The Court went further, “The holding of the Court was not that it sustained Respondents’ counterpoints * * * but that it overruled Petitioners’ points.” See also Texas State Highway Department v. Fillmon, 150 Tex. 460, 242 S.W. 2d 172; Edwards v. Strong et al. 147 Tex. 155, 213 S.W. 2d 979; Eliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W. 2d 558, 4 A.L.R. 2d 191.
The question of what territory constitutes a town or village and the question of who has the duty and the power of deciding whether the territory proposing to incorporate is a town or village within the meaning of Article 1133, and the question of the power of the County Judge to revoke an order calling an election were not before the Court of Civil Appeals in the first instance. Therefore, it follows that raising the questions we are now called upon to determine for the first time on motion for rehearing in the Court of Civil Appeals comes too late. This is not a situation where petitioner obtained a favorable judgment in the trial, and such judgment was reversed by the Court of Civil Appeals, and for the first time was required to assign error.
Assuming that the points are here for review and final determination, I respectfully submit that “Impact” was not a “town” within the meaning of the statute on February 11, 1960, the date the Judge revoked the first order. The attempted act of incorporation was without authority of law and is, therefore, *469void. The County Judge cannot and should not be compelled to order an election which, in his opinion under the facts presented, and the law, can only end in a proceeding which is void. This Court cannot issue a mandamus to compel the County Judge to change his decision made in good faith. The statutes in question, Articles 1133, 1134,- and 1136, Vernon’s Annotated Civil Statutes, vested in and imposed on respondent the duty to hear proof and determine the requisite facts for incorporation. The County Judge has heard the proof and determined that the tract of 47 acres is not a “town” within the meaning of the statute.
In the case of Word v. Schow, supra, the court after citing State v. Goodwin, 69 Texas 55, 5 S.W. 678, Ewing v. State, 81 Tex. 172, 16 S.W. 872, and Scarborough v. Eubank, 93 Texas 106, 53 S.W. 573, said:
“It seems to be conceded by the appellees that the above authorities treat the decision of the County Judge as conclusive in the absence of fraud * *
The above cases were reviewed again by the Eastland Court of Civil Appeals in the case of State v. Town of Clyde, 18 S.W. 2d 202, wr. ref. The Court in upholding the trial court’s order in an analogous situation to ours held that the duty imposed upon the County Judge by the legislature was one of a judicial nature. The Court said:
“The question naturally arises: Can the County Judge, by ordering an election where there are fewer than the requisite number of inhabitants [here, the County Judge has held that ‘Impact’ is not a town], thus set at naught the law with the effect that redress will be denied to every one aggrieved by such action. The test of the validity of such action, we think, is good faith on the part of the officer thus charged with the duty. The action of the officer is at all times supported by a presumption that he did what it was his duty to do. If the Judge orders such an election, knowing or having good reason to believe that there does not exist the requisite number of inhabitants, his act in doing so would, no doubt, be held to be fraudulent. Unquestionably the law will relieve from the effects of fraud. But even in such case the fraud sufficient to invalidate his action must be such as is chargeable to the officer and not merely fraud of others by which the officer is led into error. Word v. Schow, 29 Tex. Civ. App. 120, 68 S.W. 192.”
*470The Court of Civil Appeals in the present case, Chief Justice Grissom writing the opinion, relying upon its judgment in the Town of Clyde case, supra, applied the principles of law therein announced and upheld the finding of the County Judge that the “territory [Impact] seeking to incorporate lacked the requisites to successfully function as a municipality, and that ‘Impact’ was only a small part of the whole community [North Park] * * * »
It is argued that the case of Ewing v. State, supra, which simply held that the County Judge had no duty to inquire into and be satisfied as to the boundaries of the proposed corporation, supports relator’s contention that the County Judge was without authority to determine whether the 47-acre tract designated as “Impact” was a town within the meaning of the statute.
The Ewing case was one brought to oust the Mayor and Councilmen of the City of Oak Cliff from office on the ground that the city had never been legally incorporated, because the territory embraced in the petition for incorporation included some that was rural in character and no part of the city proper. This Court said that the facts brought the case within the principles announced in State v. Edison, 76 Tex. 302, 13 S.W. 263, 7 L.R.A. 733. The Court asked and answered its own question. [81 Texas 172, 16 S.W. 873].
“Who are empowered to create the corporation?
“The inhabitants of cities, towns and villages.
“What are they empowered to incorporate?
“The cities, towns, and villages themselves, and not also such portions of the adjacent territory as these inhabitants may be pleased to embrace within the limits of the corporation.” [Emphasis added].
The Court upheld the judgment of ouster because the election to incorporate was illegal.
It is true that the Court made the statement attributed to it by the majority here, but the opinion does not hold that the County Judge has no power to determine whether the territory proposing to incorporate is a town or village within the mean*471ing of the statute. I concede that the County Judge has no power to change the boundaries of a town or village. The petitioners must do that themselves, and if all requisites are present under the applicable statutes (1138-1136), the County Judge must call the election.
This Court said in Scarborough v. Eubank, supra, that in all elections of a local option character, “It is essential, in order to give effect to the laws which provide for such elections, that some officer * * * should be empowered to order the election, and that it should be made a duty to so order it upon the occurrence of certain conditions, usually the presentation of a petition, signed by a certain number of legal voters.” After certain comments, the Court then said that the principle controlling the Eubanks case was announced in the Goodwin case, supra, and that the only apparent difference was that in one case the statute expressly requires that the judge be satisfied by proof as to the required population while in the other nothing is said as to his hearing proof as to the competency of the petitioners; “but it is obvious that what is expressly demanded in the one instance is impliedly required in the other.”
One of the requisites for incorporation is that the territory to be incorporated shall be a town or village. The County Judge unquestionably had the implied power to determine, after a hearing, that question. The County Judge in the exercise of that power has in good faith determined that “Impact” was not a town within the meaning of the statute. The County Judge’s action was judicial in nature and in conformity with the duties imposed upon him by the legislature. Such decision made in good faith was conclusive in the absence of fraud.
The case of Petition to INCORPORATE THE CITY OF DUQUESNE, 322 S.W. 2d 857 (Supt. Ct. Mo. 1959), is, in my opinion directly on the point. It supports my conclusion that the order entered by the County Court of Jasper County denying a petition to incorporate the City of Duquesne was judicial in nature and not ministerial.
In the case of State ex rel Wilke v. Stein, Texas Com. App., 26 S.W. 2d 182, rehearing Texas Com. App., 36 S.W. 2d 698, the Court said:
“The right to enjoy and exercise the privilege of a municipal corporation depends upon a substantial compliance *472with the mandatory provisions of the statutes which authorize its organizations, and the territory sought to be embraced must be so conditioned that it may be subjected to municipal government, Arts. 1138, 1134; State v. Hoard, 94 Tex. 527, 62 S.W. 1054.”
I cannot agree that the Court’s opinion on motion for rehearing in the Stein case modified in any respect the holding that there was no substantial compliance with the mandatory provisions of Articles 1133 and 1134, supra.
The Court here holds that the County Judge had no right to revoke his election order. In my opinion, he would have been derelict in his duty had he failed to revoke his former order after hearing the proof on February 11, 1960. The County Judge by his revocation order did not attempt to change the boundaries “set in the petition”, but did find that the 47-acre area was not a town or village within the meaning of Article 1133, supra'.
Unquestionably, under the proof, the County Judge acted with discretion in following the statutes which, in effect, forbid the incorporation of a small pocket of a town which is not conditioned to function as a municipal corporation. It was the intention of the legislature in authorizing the incorporation of villages and towns to require the existence of one continuous and contiguous territory within which are living a certain number of inhabitants.
The petitioner’s attempt to incorporate the territory described in his petition for election was void for the reason that the statutes governing such matters were not even substantially followed.
It is untenable to say that the County Judge cannot exercise the power vested in him by the legislature, but is relegated to quo warranto proceedings.
Petitioner’s attempt to incorporate a part of a town, if upheld, would effectively deprive all of the qualified voters of the town outside of the area described in the petition for election of the right to participate in the election. The statutes simply do not authorize the creation of a municipal corporation out of a portion of territory comprising an unincorporated town. See State ex rel Wilke v. Stein, supra.
*473Petitioner relies upon Cameron v. Baker, Tex. Civ. App., 13 S.W. 2d 119. That case has no application. The basic question presented in that case was related to the power of the County Judge to set his election order aside after notices had been given “and all other requisites of the statute complied with”, and the voting was in progress. In our case it was definitely established at the hearing on February 11, 1960, two days before the date of election, that Articles 1133 and 1134, supra, had not been complied with.
I think the holding in the case of Beyer v. Templeton, Tex. Civ. App., 208 S.W. 2d 692, affirmed in 147 Tex. 94, 212 S.W. 2d 134, supports the respondent’s action in revoking his order of election. This court in that case said:
“It clearly appears that he signed the original order without knowledge of the true facts, and upon being apprized of the true facts he immediately revoked the order; * * *.”
The election, therefore, was void and the court cannot by mandamus compel the respondent to accept the returns, canvass the votes, and declare the results of such void election. There was no order calling such election. See Heaton v. Bristol, Tex. Civ. App., 317 S.W. 2d 87, wr. ref.
The judgment of the trial court and the Court of Civil Appeals should be affirmed.